Obama Sends Holder to Ferguson With Limited Legal Tools

Police attempt to control demonstrators protesting the killing of teenager Michael Brown on August 18, 2014 in Ferguson, Missouri. Photograhper: Scott Olson/Getty Images

Aug. 19 (Bloomberg) -- President Barack Obama has few
options to directly address the grievances at the heart of the
unrest in Ferguson, Missouri.

The main avenue available to the administration is a
federal civil-rights investigation, and Obama is dispatching
Attorney General Eric Holder to the St. Louis suburb in a show
of commitment to an aggressive inquiry into the shooting of an
unarmed black teenager by a local police officer.

In announcing that Holder would meet with federal and local
authorities on the case tomorrow, Obama is showing the federal
government’s interest without reaching conclusions or promising
results.

“I have to be very careful about not prejudging these
events before investigations are completed,” Obama said at the
White House yesterday. “I’ve got to make sure that I don’t look
like I’m putting my thumb on the scales one way or the other.”

Obama met with Holder and other advisers on the situation
in the St. Louis suburb after Missouri Governor Jay Nixon
ordered National Guard troops to restore order. Obama said he
also spoke with Nixon yesterday by telephone.

The unrest in Ferguson stems from suspicions in a
predominantly African-American community that an overwhelmingly
white local police force will not hold its officer accountable
in the shooting of 18-year-old Michael Brown. Holder’s visit to
Ferguson will provide images of a black attorney general
dispatched by a black president.

Calming Waters

“The Justice Department’s main role in a situation like
this is to calm the waters by assuring the community that there
will be a full, independent, credible investigation,” said Matt
Miller, Holder’s former top spokesman who is now a crisis
communications consultant.

Holder indirectly criticized how local authorities have
handled evidence and said the federal inquiry would be thorough.

“The selective release of sensitive information that we
have seen in this case so far is troubling to me,” Holder said
in a statement. “No matter how others pursue their own separate
inquiries, the Justice Department is resolved to preserve the
integrity of its investigation.”

Reassurance Offered

Senator Claire McCaskill, a Missouri Democrat, said today
Holder’s visit would offer reassurance to the community.
Historically, progress in civil rights has come at the hands of
the federal government, and that there’s “a natural distrust”
of state and local authorities, she said.

“I wanted to make sure that with Eric Holder’s visit
tomorrow the people in the community are reassured that there is
a very, very competent set of eyes looking over the shoulder of
every state and local investigator in the community,” McCaskill
said on the “Morning Joe” program on MSNBC.

While the Justice Department has opened a civil-rights
investigation into the Aug. 9 shooting death of Brown, any
resolution is likely a long way off.

Prosecutors must meet a difficult standard to prevail if
they charge the police officer involved with a federal civil-rights violation, said William Yeomans, a former Justice
Department civil-rights lawyer.

“Those are tough cases, though not impossible,” said
Yeomans, now a law professor at American University in
Washington. “The federal government has to show the officer
acted with specific intent to use more force than was reasonably
necessary under the circumstances, and that’s difficult.”

King Beating

In one of the most high-profile cases of recent times,
federal prosecutors brought civil-rights charges against four
officers involved in the 1991 beating of Rodney King after they
were acquitted in a state court, a verdict that sparked riots in
Los Angeles. Two of the officers were convicted on the federal
counts, and the other two were acquitted.

The Justice Department didn’t intervene in the 1999 case of
Amadou Diallo, who was shot 19 times by New York City police
officers in the doorway of his apartment building. The officers,
who were acquitted by a state court jury, said that they
mistakenly thought he was reaching for a handgun when he was
pulling out his wallet.

In dealing with civil unrest, federal authorities are
usually wary of direct involvement and typically defer to state
and local authorities on whether to send in federal agents or
troops, said George Terwilliger III, who was involved in the
response to the 1992 Los Angeles riots that followed the state
verdict in the King case. That’s partly because the Constitution
grants police powers for public safety to state governments.

Bush Response

During the Los Angeles riots, in which more than 50 people
died and property damage reached hundreds of millions of
dollars, California officials originally told the Bush
administration they didn’t need federal help and then reversed
themselves, said Terwilliger, who was the No. 2 Justice
Department official under President George H.W. Bush.

The Bush administration first sent federal law enforcement
agents trained and equipped for riot control and later
dispatched federal troops, he said.

The situation in Ferguson “doesn’t look like it’s
escalated to the point that’s needed to break the cycle of
violence,” said Terwilliger, now a partner in the Washington
office of the law firm Morgan Lewis.

Parallel Probes

The federal investigation is running in parallel with the
local inquiry into the shooting and the Justice Department has
let Missouri authorities take the lead.

Roscoe Howard, a former U.S. attorney for the District of
Columbia, said he could see Nixon appointing a special
prosecutor in the case. “That would remove some of the politics
from it,” Howard said.

The Justice Department could also initiate a separate
criminal investigation of local law enforcement’s handling of
the protests following the shooting, examining whether police
used excessive force on demonstrators, Yeomans said.

“Any time there is an incident of this magnitude and this
visibility, it is likely that there will be some kind of review
of excessive force,” Yeomans said.

Holder also could begin civil investigations of local
police, examining whether officers engaged in a pattern of
excessive force or inadequate investigation of complaints,
Yeomans said.

Additionally, the department could investigate police
department hiring practices that “resulted in a nearly all
white police force in a predominantly African American
jurisdiction and that raises obvious questions,” Yeomans said.